Appeals Court Upholds Dismissal of Plame Civil Lawsuit

The D.C. Circuit Court of Appeals today upheld the dismissal of Valerie Plame Wilson and Joseph Wilson's lawsuit against Dick Cheney, Scooter Libby and Karl Rove.

Plame and Wilson accused the four men of violating their constitutional rights by leaking Plame's identity to the media in retaliation for a New York Times opinion piece by Wilson that questioned the Bush administration's basis for going to war in Iraq.

The decision ``allows outrageous government conduct to go unpunished,'' said Melanie Sloan of Citizens for Responsibility & Ethics in Washington, a watchdog group that represented Plame and Wilson. She said the group is considering asking the full D.C. Circuit to review the case and an appeal to the U.S. Supreme Court.

Today's opinion is here.The trial court's opinion dismissing the suit is here. More background here.

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    Is Plame ever going to get (5.00 / 3) (#1)
    by pie on Tue Aug 12, 2008 at 08:36:14 PM EST
    any justice?

    She was a CIA agent who was outed by the Vice-President, loosely speaking.

    I guess he outranks her, doesn't he.

    There oughta be a law...

    My only question is (5.00 / 2) (#2)
    by weltec2 on Tue Aug 12, 2008 at 08:36:21 PM EST
    why did they bother? I'm sorry, but we all knew what the outcome was going to be. It just makes the Republicans look stronger. There is a clear double standard. It reveals that they really are above the law. Rove can now thumb his nose and laugh at the Dems. That is all this does. If there is more, I'd like to hear it.  

    Actually, weltec2 (5.00 / 5) (#7)
    by JavaCityPal on Tue Aug 12, 2008 at 08:59:32 PM EST
    I really agree with everything you say, but the dems can no longer pretend to be anything but Republicans with training wheels. They certainly proved to us this year that they think the rules are for others, that those in control can bend them, twist them, break them, and apply them differently depending on who they are dealing with.

    Harsh....but spot on JavaCityPal !!. (5.00 / 3) (#9)
    by PssttCmere08 on Tue Aug 12, 2008 at 09:11:59 PM EST
    "an important act of principle" (5.00 / 1) (#8)
    by weltec2 on Tue Aug 12, 2008 at 09:05:13 PM EST
    That of course is the bottom line and where we must continue to take our stand. But it doesn't make me feel any less angry and frustrated.

    Principle indeed... (5.00 / 3) (#10)
    by maladroit on Tue Aug 12, 2008 at 09:13:08 PM EST
    When I was at an event with Ambassador Wilson, someone came up to him and thanked him for everything he and his wife did, and for bringing the lawsuit forward, and he said something along the lines of 'you don't need to thank me, I'm just doing my job as a citizen'.

    I too am happy the suit went forward, and that we have two people unafraid to do what's right when it comes to taking on the government.


    Amazing (5.00 / 4) (#3)
    by Steve M on Tue Aug 12, 2008 at 08:41:05 PM EST
    The courts cannot grant Plame any sort of remedy for the disclosure of her confidential employment because... doing so may require the court to look at confidential information.

    Sometimes the law is truly through the looking-glass.   The dissent makes some solid arguments.

    The court can't look at (5.00 / 2) (#5)
    by pie on Tue Aug 12, 2008 at 08:47:40 PM EST
    confidential info, but the executive branch gets to announce to the world that she's an undercover CIA agent.

    Makes sense in bizarro world.


    I'm no lawyer, (5.00 / 1) (#4)
    by pie on Tue Aug 12, 2008 at 08:41:44 PM EST
    but, in the first part of it that I've read, it sounds like the Bush administration wrote the opinion.  Interesting how heavily the media figures in so far.

    Sentelle is a Republican partisan (none / 0) (#16)
    by Radiowalla on Tue Aug 12, 2008 at 10:39:09 PM EST
    and intervened to get Fisk dismissed as Independent Prosecutor in order to install Kenneth Starr.


    He might as well be part of the administration.


    From the majority:

    Indeed, it is where Congress has intentionally withheld a remedy that we must most refrain from providing one because it is in those situations that "appropriate judicial deference" is especially due to the considered judgment of Congress that certain remedies are not warranted. See Chilicky, 487 U.S. at 423. That deference must be given whether Congress has chosen to exclude a remedy for particular claims, as in Bush and
    Chilicky, or from particular defendants, as here. Provided "Congress has put in place a comprehensive system to administer public rights, has `not inadvertently' omitted damages remedies for certain claimants, and has not plainly
    expressed an intention that the courts preserve Bivens remedies," Spagnola, 859 F.2d at 228, we cannot create additional remedies. Therefore, because Congress created a comprehensive Privacy Act scheme that did not inadvertently exclude a remedy for the claims brought against these defendants, we will not supplement the scheme with Bivens remedies.

    The problem with this formulation is well expressed in Judge Rogers dissent:

    The Act balanced these individual
    protections against the government's legitimate need for information and information systems,2 but did not eliminate other protections under the Constitution. The issue presented is thus
    not whether any individual may obtain some relief regarding information that is protected under the Act, but whether the Wilsons are to be afforded an opportunity to obtain relief for alleged constitutional violations against which the Act provides no protection. Nothing in Congress's decision to limit remedies under the Act to individuals with agency records or to exempt
    the offices of the President and Vice President shows an intention to deny a cause of action for violations of the First and Fifth Amendments to the Constitution, as the legislative history
    makes clear, see, e.g., S. REP. NO. 93-1183, at 15 (1974)

    The majority ignores this salient argument in its opinion, as it must, as it has no answer to this argument.

    Another interesting point is whether the Wilson's attorney's properly framed Valerie Wilson's claims as grounded in the First Amendment as well. Third Party standing for claiming a First Amendment retaliatory action by a government under Section 1983 is well established. See, e.g., El Dia v Rossello. I am not familiar if it is similarly established under Bivens jurisprudence.

    I would ask for an en banc review because the majority opinion is quite weak. It may reach the correct result, but the opinion does not support that result very well imo.

    I should have kept reading (5.00 / 2) (#12)
    by Big Tent Democrat on Tue Aug 12, 2008 at 09:23:35 PM EST
    The dissent demolishes the majority here:

    There is nothing novel about a Bivens remedy for a First Amendment retaliation claim against federal officials. See, e.g., Hartman,
    547 U.S. at 256; Nat'l Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1248 (10th Cir. 1989); Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986); Ethnic Employees, 751 F.2d at
    1415; Dellums v. Powell, 566 F.2d 167, 194-95 (D.C. Cir. 1977).

    . . . Mr. Wilson's claims, then, are the type for
    which Bivens contemplated a compensatory cause of action to deter government officials' violations of the Constitution, see Malesko, 534 U.S. at 70-71, 74; FDIC, 510 U.S. at 485; Carlson,
    446 U.S. at 21-22; Bivens, 403 U.S. at 395-96; id. at 403, 408 (Harlan, J., concurring in judgment); see also Wilkie, 127 S. Ct. at 2600; Hartman, 547 U.S. at 256, and which the Privacy Act did not foreclose, see, e.g., S. REP. NO. 93-1183, at 15, SOURCE BOOK ON PRIVACY at 168.

    Heh (5.00 / 1) (#15)
    by Steve M on Tue Aug 12, 2008 at 09:45:52 PM EST
    En banc review at the DC Circuit?  The Wilsons will get a personal letter of apology from Dick Cheney before they get a favorable ruling from THAT stacked court.

    I completely agree with your legal analysis, btw.  This seemed to me to be the crux of the dispute.


    Just think how Nixon would have faired (5.00 / 2) (#13)
    by Rhouse on Tue Aug 12, 2008 at 09:33:29 PM EST
    with the Judicial and Congressional mindset operating now a days.  I wonder where his statue would have been placed?

    You are never going to get these guys (none / 0) (#14)
    by Saul on Tue Aug 12, 2008 at 09:44:12 PM EST
    It will never happen. You only got less than 6 months and they are gone.
    Bush will give pardons to all his buddies that congress wanted to prosecute, or question.   They have all been told  already that they will all get full pardons.  Bush does not want anybody out there that will cause problems for him after he leaves.  His ratings is one of the lowest if not the lowest so what does he got to loose by issuing pardons wholesale.

    so true! and that anyone expects the (5.00 / 1) (#21)
    by hellothere on Wed Aug 13, 2008 at 02:10:47 AM EST
    dems to use their power in congress to right the wrongs will be sadly disappointed in my view.

    Which is why impeachment was/is so important! (none / 0) (#24)
    by jawbone on Sun Aug 17, 2008 at 09:58:31 AM EST
    "...as legislative history (none / 0) (#17)
    by oldpro on Tue Aug 12, 2008 at 11:48:57 PM EST
    makes clear..."

    I'm thinking we could sue the Rs under RICO as a criminal enterprise.

    Saul - sad but true . . . (none / 0) (#18)
    by Jess Wonderin on Wed Aug 13, 2008 at 01:26:24 AM EST
    Saul made a point, the rats have gathered up the swag, cover each other and Bush will hand out wholesale pardons by the handfulls . . . unless we get a REAL Justice Department backed by a pissed Congress, we will be just a hapless hopeless spectator, as the NeoCON Express rolls out of town, with bitter memories of what America used to be.

    How about (5.00 / 1) (#19)
    by weltec2 on Wed Aug 13, 2008 at 01:34:56 AM EST
    Kucinich for Attorney General?

    Come to think of it (none / 0) (#22)
    by weltec2 on Wed Aug 13, 2008 at 02:28:16 AM EST
    Kucinich is not a lawyer. How about Russ Feingold. He's a Harvard lawyer the same age as Edwards (55) and doesn't have Edwards' scandals to worry about.

    BTW Jeralyn (none / 0) (#23)
    by weltec2 on Wed Aug 13, 2008 at 03:59:40 AM EST
    That is a great photo of Karl Rove second only to him thumbing his nose at the press/American people. It's a photoshop job, right?